Outside Money Continues to Flow Into State Supreme Court Races

Outside groups continue to pour money into state supreme court campaigns, with television advertising spending so far totaling $5 million this election season. The latest analysis from the Brennan Center for Justice at NYU Law shows that outside groups account for a near-record 54 percent of all TV spending on high court races for October.

“The surge of outside spending into state supreme court races continues to seriously threaten the integrity of our nation’s courts,” said Douglas Keith, counsel at the Brennan Center and coordinator of the ongoing Buying Time project that tracks state judicial election spending. “As we just laid out in a report earlier this year, outside and dark money spending imperil the ability of judges to be and appear fair and impartial, and the pressures of elections are contorting our justice system to favor the wealthy and the powerful.”

Data provided to the Brennan Center by Kantar Media/CMAG show that the biggest outside spender to date is the Republican State Leadership Committee’s Judicial Fairness Initiative, a regular player in state court races nationwide. According to state filings and public statements, already the group has spent at least $3.2 million this year to support conservative state supreme court candidates in Arkansas and West Virginia, well above the group’s 2016 spending across four states. The second biggest spender so far this cycle is North Carolina Families First, which has spent $1.2 million supporting Democratic candidate Anita Earls.

“As in 2016, what’s so distributing is that voters will likely never know who is making these multi-million-dollar ad buys,” said the Brennan Center’s Keith. “The top two groups this season have reported some of their donors, but the money trail is often obscured by donations from parent organizations, corporate interests, and other outside groups that aren’t required to report their individual donors. It’s nearly impossible to decipher who might be trying to skew state courts in their favor.”

In addition to TV spending, 2018 has seen outside groups spending on digital ads. Americans for Prosperity, a group affiliated with the conservative Koch brothers, is running ads supporting incumbent Michigan supreme court judge Kurtis Wilder, while Ohioans for a Health Economy, a group with close ties to the state’s Chamber of Commerce, is running digital ads supporting two state supreme court candidates.

The Brennan Center also finds candidates themselves are taking to the airwaves this fall in North Carolina, Nevada, West Virginia, Michigan, Arkansas, Alabama, and New Mexico (click here to read our state-by-state breakdown). In a twist this year, some ads from judges take the tone of partisan political spots, invoking President Trump or other national political figures and themes to make the case to voters. One ad from a sitting supreme court justice in North Carolina goes as far as imploring voters to “stop the liberals.”

“At a moment of political intensity, this kind of spending and politicization are hurting our nation’s courts,” said Brennan’s Keith. “That’s why we’re advocating for the abolition of state supreme court elections and favor independent, bipartisan commissions to vet judges for appointment to a single lengthy term. It’s one way to inoculate our state courts from undue influence and the scourge of dark, untraceable money.”